General Terms and Conditions
I. Scope / Definitions
The General Terms and Conditions (subsequently referred to as "GTC") of omnoto.com Frank Romweber, Erwitter Straße 105, 59557 Lippstadt (subsequently referred to as "omnoto"), apply to all contracts that a consumer or entrepreneur (subsequently referred to as "customer") concludes with omnoto.
Consumers in the sense of the terms and conditions are natural persons with whom a business relationship is entered into without a commercial or independent professional activity being attributable to them.
Entrepreneurs in the sense of the terms and conditions are natural or legal persons or partnerships with legal capacity, with whom a business relationship is entered into, who act in the exercise of a commercial or independent professional activity.
II. Offer, conclusion of contract, form
Depending on the type of offer, a contract between omnoto and its customers is concluded by confirmation of the offer by the customer or confirmation of the order by Omnoto.
A certain form, especially written form, is not required.
Offers from omnoto are subject to change, unless otherwise stated. Omnoto is bound to fixed offers for two weeks, decisive is the time of submission of the offer.
II. Services / cooperation
The details of the services to be provided by omnoto result from the service description to the offer, as well as orders given in writing or orally.
Customers provide omnoto with all documents and specifications necessary for omnoto's work.
Omnoto is not responsible for delays in performance due to circumstances in the customer's area of responsibility (e.g. non-timely provision of cooperation services) and force majeure (e.g. strike, lockout, general disturbance of telecommunication). The customer entitles omnoto to postpone the provision of the respective services for the duration of the hindrance, plus a reasonable start-up time.
III. External services
Omnoto will usually order external services necessary for order fulfillment in the name and for the account of the customer.
In case of change or cancellation of orders, works and the like by the customer and/or if the prerequisites for the service provision change, omnoto will be compensated by the customer for all resulting costs and omnoto will be released from any liabilities towards third parties.
IV. Remuneration and payment
If a fixed remuneration is agreed upon, Omnoto is entitled to invoice partial payments for self-contained and independently usable parts of the agreed service.
Unforeseeable additional expenses require mutual agreement and written agreement supplementing the contract, if necessary additional remuneration.
If the remuneration is based on time spent, the respective valid remuneration rates of omnoto are applicable in the absence of other agreements.
Invoicing according to time expenditure is carried out by submitting suitable activity proofs. The customer can object to the determinations made there within two weeks in text form. After expiration of the deadline without objection by the customer, the activity records are considered accepted.
Unless otherwise agreed, travel expenses, incidental expenses and other expenses shall be reimbursed in the amount actually incurred, but at least in accordance with the flat tax rates. Travel time and travel expenses are calculated depending on Omnoto's place of business. In addition, travel time is considered as working time and will be charged according to the agreed hourly rates.
Unless otherwise agreed, all services are to be paid by bank transfer to the bank account indicated on the invoice within fourteen days after the invoice date.
V. Warranty and acceptance
In case of defectiveness of a delivery, the customer is entitled to subsequent performance. Omnoto is obligated to supplementary performance in the form of removal of the defect, according to its choice.
If the supplementary performance fails, the customer can choose to reduce the price or withdraw from the contract without observing a deadline.
The customer is obligated to accept the service or the work, provided that the result meets the contractual requirements. Both parties shall strive for a speedy acceptance.
During the production phase omnoto is entitled to provide the customer with individual components of the order for partial acceptance. The customer is obligated to partial acceptance, provided that the relevant components meet the contractual requirements.
The service is also considered accepted in commercial business transactions if the customer has used it for four weeks. Acceptance by the customer takes place automatically at the latest 14 days after provision for acceptance, if no defects are found or these are not made known to omnoto. omnoto will separately point out the acceptance fiction due to the customer's behavior.
Omnoto commits itself to execute the order with the greatest possible care, in particular also to treat handed over templates, sketches, layouts, data etc. with care. It is liable for damages caused only in case of intent and gross negligence.
Omnoto commits itself to carefully select and instruct its vicarious agents. Beyond that it is not liable for its vicarious agents.
If omnoto commissions necessary external services, the respective contractors are not vicarious agents. Omnoto is only liable for its own fault and only in case of intent and gross negligence.
If Omnoto uses software systems or components of other manufacturers, omnoto is not liable for the quality and security gaps or errors of this third party software. In case of doubt, troubleshooting and error correction will be charged. This applies in particular to the use of free open source software or additional modules. The burden of proof is on Omnoto.
With the approval of drafts, final designs, final artwork, screen designs and templates by the customer, the customer assumes responsibility for the correctness of text, image and its scope. Omnoto is not liable for drafts, texts, final designs, final artwork, screen designs and templates approved by the customer. Complaints of any kind must be made in writing to omnoto within 14 days after delivery of the work or after provision for acceptance. After that the work is considered as accepted without defects.
Omnoto is not liable for the admissibility and registrability of the work under competition and trademark law.
Omnoto is not obliged to check the materials and contents for possible violations of law, but it will inform the customer in due time about weighty risks which are easily recognizable from its point of view.
In case Omnoto itself is held liable due to the materials and contents provided by the customer, the customer indemnifies omnoto from these claims.
VII. Retention of Title
All delivered services remain the property of omnoto until complete fulfillment of all monetary claims of omnoto from its business relationship with the customer, even if payments have been made for the specific service.
The customer has to inform omnoto immediately in case of execution measures on the goods.
VIII. Copyright and rights of use
The services developed within the scope of the order are protected as personal intellectual creations by the copyright law. This regulation is also considered as agreed, if the required level of creation according to the copyright law is not reached.
The works of omnoto may not be changed by the customer or by third parties commissioned by the customer, neither in the original nor in the reproduction. Any imitation, even of parts of the work, is prohibited. In case of violation omnoto is entitled to an additional fee from the customer of at least 2.5 times the amount of the originally agreed fee.
Omnoto is obligated to treat all knowledge, which it receives from the customer due to an order, strictly confidential for an unlimited period of time and to obligate its employees as well as third parties used by it to absolute secrecy in the same way.
B. Supplementary terms and conditions for the use of the offered store plugins
I. Subject matter of the contract
omnoto provides the customer with software extensions (plugins) for integration into their webshop. The customer receives a simple non-transferable license for the use of the plugins in his webshop for the contract period.
The use license is valid per customer only for the use on a domain of the customer or in a webshop operated by the customer. In the case of multi-shop systems, the customer must purchase a separate license for the use of the plug-ins for each store.
The remuneration to be paid results from the respective valid price lists of omnoto.
If no further corresponding omnoto services are used by the customer, the plugins are installed and put into operation by the customer himself.
If no further corresponding omnoto services are used by the customer, the customer is responsible for the installation of updates.
In case of updates or an adjustment due to the use of a new Shopware version (especially in case of major version jumps of Shopware), the provision of an immediate update of the plugins by omnoto cannot be guaranteed.
III. Contract duration / termination
The contract is concluded for an indefinite period, but at least for the duration of 12 months.
After expiration of the agreed minimum term, the contract can be terminated in writing by either party with a notice period of one month to the end of the respective contract term.
If the customer does not uninstall or delete the plugins within two weeks after the end of the contract, the contract is automatically extended again for an indefinite period.
Furthermore, omnoto has the right to terminate the concluded contract without notice if it is no longer reasonable for omnoto to adhere to the contract, especially if the customer has culpably violated the GTC or applicable law. The termination has to be made in writing.
The customer's right to terminate the contract for good cause remains unaffected.
III. terms of payment / direct debit authorization
The payment of the contract fee is monthly or yearly depending on the chosen model.
If omnoto has been informed of a bank connection by the customer, omnoto is explicitly and revocably authorized to collect the due payment for the use of the plugin by direct debit until the permission is withdrawn.
In case of failure of the direct debit collection via the communicated bank connection or in case of a premature revocation of the direct debit authorization, omnoto is entitled to block the customer's access to the Plugin. This also applies if the customer is in default with payments in a considerable amount. The block will be lifted immediately after receipt of the overdue amount or renewed issuance of a direct debit authorization.
In case of return debit notes, the customer has to refund the corresponding costs to omnoto.
IV. Passing on of data
The customer is not allowed to pass on the plugin code to third parties (with the exception of the customer's employees).
The customer is only allowed to pass on the plugin code to external agencies or service providers after separate approval by Omnoto.
Should the customer have the impression that the plugin code is being used by third parties without authorization, omnoto must be informed immediately. If the acquisition of the plugin code by third parties is the fault of the customer, the resulting damages are to be compensated by the customer.
Omnoto assumes no liability for the compatibility of the plugins with software products of other providers, unless omnoto has expressly assured this to the customer. The customer has to inform himself in this respect before conclusion of the contract.
Omnoto strives for an accessibility of the plugins and the databases at any time. Within the scope of the current state of communication technology, restrictions, impairments, connection interruptions or other limitations of the use of the services cannot be completely excluded. This applies to those contents and transmission paths that are beyond the control of omnoto.
The maintenance and development of the plugins requires temporary restrictions of use due to maintenance and update work. The extent of the resulting restrictions of use will be kept by omnoto within reasonable limits.
C I. Services
The provider (omnoto) provides services for making content accessible via the Internet. For this purpose, the provider provides the customer with its own root server. The customer can store content on this server up to the storage volume specified in the order. The customer does not receive root access to the server. Excluded from this is the administrator access to the store system.
On the server, the contents are kept ready for retrieval via the internet under the internet address to be provided by the customer. The services of the provider in the transmission of data are limited solely to the data communication between the transfer point of the provider's own data communication network to the internet and the server provided for the customer. It is not possible for the provider to influence data traffic outside its own communication network. A successful forwarding of information from or to the computer requesting the content is therefore not owed in this respect.
The provider provides the aforementioned services with an overall availability of 99%, insofar as no other availability is specified in the respective service offer.
The availability is calculated on the basis of the time allotted to the respective calendar month in the contract period minus the maintenance times defined below. The provider is entitled to carry out maintenance work to an extent of 6 hours within the provider's opening hours. During the maintenance work, the aforementioned services are not available.
In addition to making the service accessible, the provider's service also includes management, written and telephone support services. This includes monitoring of:
- Web server (HTTP)
- Mail server (SMTP, POP3, IMAP, spam filter, virus scanner, mail volume)
- Server services (FTP, SSH, NTP)
- Databases (MySQL, PostgreSQL)
- Server load
- Hard disks (S.M.A.R.T., disk space utilization)
Support services beyond this are not included and will be processed only in exceptional cases. For the treatment of such inquiries, after previous arrangement with the customer a service fee i.H.v. 21,00 Euro gross per begun quarter hour is computed.
The data backup of the web presence (database and files) is done daily locally on the server. Weekly the complete server with the local backups of the web presence is backed up externally. The backups are kept for a maximum of 4 weeks. The customer has no claim to the return of any of the backup media, but only to the retransfer of the backed up content to the server.
The provider is entitled to adapt the hardware and software used to provide the services to the respective state of the art. If, as a result of such adaptation, additional requirements arise for the content stored by the customer on the server in order to ensure the provision of the provider's services, the provider shall notify the customer of these additional requirements. The customer shall decide immediately upon receipt of the notification whether the additional requirements are to be met and by when this will be done. If the Customer does not declare at the latest four weeks before the changeover date that he will adapt his content to the additional requirements in time for the changeover, i.e. at the latest three working days before the changeover date, the provider has the right to terminate the contractual relationship with effect from the changeover date.
If the provider has provided the customer with static IP addresses, the provider may change the IP addresses assigned to the customer if this should become necessary for technical or legal reasons. The customer will be informed immediately about the upcoming change.
II. Cooperation Obligations of the Customer
The customer obliges not to place any illegal content on the server provided which violates laws, official requirements or the rights of third parties. He shall ensure that the internet address selected by him, under which the contents can be retrieved via the internet, also does not violate laws, official requirements or the rights of third parties. Furthermore, the customer shall ensure that programs, scripts or similar installed by him do not endanger the operation of the provider's server or communication network or the security and integrity of other data stored on the provider's servers. The customer shall indemnify the provider against any claims by third parties, including the costs triggered by such claims.
In the event of an imminent or actual violation of the above obligations, as well as in the event of the assertion of not obviously unfounded claims by third parties against the provider for the omission of the complete or partial presentation of the content stored on the server via the internet, the provider is entitled, taking into account also the legitimate interests of the customer, to temporarily suspend the connection of this content to the internet in whole or in part with immediate effect. The provider will inform the customer about this measure immediately.
If programs, scripts or similar installed by the customer endanger or impair the operation of the provider's server or communication network or the security and integrity of other data stored on the provider's servers, the provider may deactivate or uninstall these programs, scripts etc.. If the elimination of the threat or impairment requires it, the provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The provider will inform the customer about this measure immediately.
For FTP and database access of the web presence to the server intended for the customer, the customer may receive a user ID and password. The customer may pass on the password only to such persons who have been authorized by him to access the storage space. Liability for damages caused by the customer is excluded.
The content stored by the customer on the server may be protected by copyright and data protection laws. The customer grants the provider the right to make the contents stored by him on the server accessible in case of queries via the Internet, in particular to reproduce and transmit them for this purpose and to be able to reproduce them for the purpose of data backup. The customer checks on his own responsibility whether the use of personal data by him meets data protection requirements.
The customer informs the provider of one or more employees authorized for support requests. Only these employees are authorized to instruct the provider to make changes to the customer's data stored on the server.
Changes by the provider's employees to the customer's data stored on the server can only be carried out if a written or electronic request is received for this purpose. In case of a written request, the signature of the previously notified authorized employee of the customer is required. In the case of an electronic request, a corresponding electronic signature is required.
III. Reseller Exclusion
The customer may not provide the services provided by the provider to third parties for commercial use.
The remuneration for the services provided by the provider is based on the price list valid at the time of the conclusion of the contract or the agreement concluded between the parties.
The customer has to raise objections against the invoice of the services rendered by the provider within eight weeks after receipt of the invoice in writing to the office indicated on the invoice. After the expiry of the aforementioned period, the invoice shall be deemed approved by the customer. The provider shall draw the customer's attention to the significance of his actions by sending him the invoice.
The provider is entitled to change the price list on which its services are based. The provider will inform the customer about changes in the price list in text form at least six weeks before the changes come into effect. If the customer does not agree with the change in the price list, he can terminate this contractual relationship extraordinarily at the time when the change in the price list is intended to take effect. The termination must be in text form. If the customer does not terminate the contractual relationship at the time the price change becomes effective, the price change shall be deemed to have been approved by the customer. The provider will draw the customer's attention to the intended significance of his conduct when notifying him of the price change.
The provision of services by the provider is conditional upon the customer's timely fulfillment of his payment obligations. If the customer is in arrears with the payment of a not insignificant part of the remuneration owed for two consecutive months, the Provider may terminate the contractual relationship for good cause without observing a notice period.
V. Term of Contract
This contract runs for an indefinite period and can be terminated at any time after one year in writing with a notice period of 30 days to the end of a calendar quarter.
Termination for cause remains unaffected.
After termination of the contractual relationship, the Provider shall make the content stored on the storage space intended for the customer available to the customer for retrieval on a data carrier or by remote data transmission for a period of four weeks. Any rights of retention of the provider shall remain unaffected.
VI. Liability for defects
If the contractual use of the services is suspended, the customer shall be released from the payment of the fee for the impaired service for the time during which the use is suspended. For the time during which the suitability for contractual operation is reduced, the customer shall only pay an appropriately reduced fee.
Defects shall be remedied free of charge. Defects and errors are to be reported to the provider immediately after their discovery in written or electronic form.
The provider is liable for defects that were already present when the storage space was provided to the customer only if the provider is responsible for these defects.
System failures will be handled during business hours between 09:00 and 18:00 o'clock.
The provider's liability for damages resulting from the use of telecommunications services for the public is governed by the provisions of the Telecommunications Act.
Outside the scope of application of paragraph 1, liability is governed by the following provisions. The provider shall be liable for intent and gross negligence. The provider is liable for slight negligence only in the event of a breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the customer may regularly rely, as well as in the event of damage resulting from injury to life, body or health. The provider shall only be liable for foreseeable damage, the occurrence of which must typically be expected. In case of slight negligence the liability is limited to 25.000,- EUR. The provider is not liable for the loss of data and/or programs insofar as the damage is due to the fact that the customer failed to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
VIII. Data and Data Protection
The customer has the right at any time to receive the data stored by him within the framework of the contract with the provider in a structured, common and machine-readable format. Insofar as this is technically feasible and legally permissible, the customer also has the right to demand that the provider transmit the data to third parties. If the provider provides one of these services, the customer shall pay the fee provided for this in the respective current price list.
If the customer processes personal data within the scope of this contractual relationship, the Customer is responsible for compliance with data protection regulations. The provider shall process the data transmitted by the customer only within the scope of the customer's instructions. If the provider is of the opinion that an instruction of the customer violates data protection regulations, the provider shall notify the customer thereof without undue delay. Details of the commissioned data processing shall be regulated in a separate agreement on commissioned data processing.
The provider has obliged its employees to maintain data secrecy.
D. Supplementary conditions for maintenance contracts
I. omnoto offers its customers as a supplementary service the maintenance of booked servers as well as webshops. These maintenance services will be ordered separately by the customer and will be remunerated additionally.
II. Contract period
The contract is concluded for an indefinite period, but at least for the duration of 12 months, in the case of software extensions, however, at the longest for the duration of the plugin or server rental.
After expiration of the agreed minimum term, the contract may be terminated by either party in writing or by mail with a notice period of one day to the end of the respective contract term.
After termination of the contract omnoto is entitled to the services provided until the effectiveness of the termination.
III. Liability / warranty for defects
The liability and warranty for defects of omnoto is based on the legal regulations as well as the supplementary regulations under A. B. and C. regulations.
Prerequisite for the liability for defects is a complaint of the customer in text form. This has to be done at the latest two weeks after knowledge of the defect.
IV. Server Maintenance
Server maintenance includes:
- The installation of security updates
- Weekly backup on an external system
- Daily backup of the database and files on the server
- Operating system upgrades are not included
- The backups made include the data from the last four weeks. Older backups will be deleted by omnoto.
V. Store maintenance
The store maintenance includes the update of the plugins used by the customer.
The services only refer to the current software generation and for Shopware versions that are no more than two version levels (major and minor versions) back.
Shopware security updates are installed regularly.
An update to a new store version is carried out once a year, unless otherwise agreed.
E. Final Provisions
I. The assignment of claims is only permissible with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The provision of § 54a of the German Commercial Code (HGB) shall remain unaffected.
II. A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.
III. The contracting parties may only offset claims that have been legally established or are undisputed.
IV. Deviating conditions of the customer are not recognized, unless the provider agrees to their validity. All changes, amendments and terminations of contractual agreements must be in writing, as well as the cancellation of the written form requirement, as far as this contract does not provide for the text form.
V. Should individual provisions of the parties' agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreements.
VI. Changes of the general terms and conditions
omnoto is entitled to change these general terms and conditions at any time with effect for the future in compliance with the following procedure. omnoto will inform the contract partners about the changes at least three weeks before they come into force. The contractual partners can object to the changes within three weeks from receipt of the notification. If no objection is made or if the changes are expressly agreed to, the changes will become effective at the notified time. If the contractual partner objects in due time, the contract will be continued under the previous conditions. omnoto will point out the aforementioned together with the change notification.
The reservation of change applies to changes of essential parts of the contract only if the change is reasonable for the customer considering the interests of omnoto. This applies if:
- the change refers to non-remunerated offers, services or areas of Omnoto and it is ensured that requests still in progress at the time of the change coming into effect remain unaffected by the change.
- the change refers to paid offers, services or areas of Omnoto and it is ensured that the already ordered chargeable functions, services and areas remain unaffected.
VII. Applicable law
All legal relations between the parties are governed by the laws of the Federal Republic of Germany, excluding the laws on the international sale of movable goods. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
VIII. Jurisdiction Agreement
In the event that the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Lippstadt.